A Swift Dismissal

Taylor SwiftNever ever ever (image, obviously, is the property of Taylor Swift and/or Swift-related entities)

Jessie Braham sued Taylor Swift and various other defendants in October, alleging that she had infringed his copyright in the song “Haters Gone Hate” by lifting lyrics from it for the slightly more popular “Shake It Off.” He also asked leave to proceed in forma pauperis (literally “like a poor person”), meaning he wanted to be excused from paying the usual filing fee. Before granting such a request, a court will look at the complaint to see whether it states a claim.

Magistrate Judge Gail Standish held this one didn’t.


Braham, who as the court noted “listed himself as doing business as Smiggereen of a Smaggereen Music” but “for ease of reference” will be referred to solely as “Braham,” claimed that 70% of “Shake It Off” was made up of an unidentified “22-word phrase” from his song repeated over and over again. Having reviewed the lyrics of both songs, the judge wrote, she had been unable to determine what Braham was talking about, and so found that he “had not plausibly identified constituent elements of the work” he was claiming had been copied. That’s a required element of a copyright claim, and so this complaint didn’t state one. The court therefore denied the IFP application and rejected the complaint.

Braham didn’t provide a copy of “Shake It Off,” apparently, but the court said it “has listened to and thus takes judicial notice” of the song under Federal Rule of Evidence 201. “Judicial notice” is only for facts that are generally known in the jurisdiction and can’t reasonably be disputed, and one might question whether Taylor Swift song lyrics constitute such facts but I’m not going to do that.

Though the court had little trouble finding the complaint was inadequate, it went on to provide some guidance in case Braham decides to try again. This wasn’t a necessary part of the opinion, but the court was clearly enjoying itself.

The songs seem very different, the court noted, although it cautioned that “for the purposes of this opinion, the Court is not drawing distinctions between [for example] ‘player’ and ‘playa’ and ‘gonna’ and ‘gon-e,'” so that will have to wait for another day. The Court also noted that a simple Google search had located other uses of “haters gone hate” and “playas gone play,” or equivalents, so Braham might have an uphill battle proving these were original anyway. He can try again if he wants to, but the court was clearly suggesting he shouldn’t.

It’s a good opinion that sets out copyright basics really well, in fact, although the conclusion has understandably gotten most of the attention:


At present, the Court is not saying that Braham can never, ever, ever get his case back in court. But, for now, we have got problems, and the Court is not sure Braham can solve them. As currently drafted, the Complaint has a blank space—one that requires Braham to do more than write his name. And, upon consideration of the Court’s explanation in Part II, Braham may discover that mere pleading Band-Aids will not fix the bullet holes in his case. At least for the moment, Defendants have shaken off this lawsuit.

I am advised that most of that is taken from various Taylor Swift songs, which is something that a judge can get away with doing.